USA v. Juan Cervantes-Sandoval, No. 15-40387 (5th Cir. 2016)

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Case: 15-40387 Document: 00513794418 Page: 1 Date Filed: 12/13/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 15-40387 United States Court of Appeals Fifth Circuit FILED December 13, 2016 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff - Appellee v. JUAN CANAS CERVANTES-SANDOVAL, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 1:14-CR-810-1 Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges. PER CURIAM:* Juan Canas Cervantes-Sandoval appeals the sentence he received following his guilty plea conviction for illegal reentry. The sole issue is whether the district court committed reversible error in imposing a sixteen-level increase under U.S. Sentencing Guideline § 2L1.2(b)(1)(A)(ii) based on its determination that Cervantes-Sandoval was previously deported following a conviction for a crime of violence (“COV”). Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 15-40387 Document: 00513794418 Page: 2 Date Filed: 12/13/2016 No. 15-40387 Cervantes-Sandoval contends that his prior conviction for aggravated assault under Ga. Code § 16-5-21(a) is not a COV because the least culpable act under the statute: (1) does not meet the generic, contemporary definition of “aggravated assault” in U.S.S.G. § 2L1.2; and (2) does not have as an element the use, attempted use, or threatened use of physical force against another. The arguments that Cervantes-Sandoval has raised are identical to those rejected by this Court in United States v. Torres-Jaime, 821 F.3d 577, 581–85 (5th Cir. 2016). As Cervantes-Sandoval concedes, Torres-Jaime is binding precedent that forecloses his arguments, even in the wake of Mathis v. United States, 136 S. Ct. 2243 (2016). See United States v. Hernandez-Cifuentes, No. 16-40550, 2016 WL 6210703, at *1 (5th Cir. Oct. 24, 2016). Accordingly, for the reasons explained in Torres-Jaime, the district court did not err in determining that Cervantes-Sandoval’s prior conviction for aggravated assault was a COV and applying the sixteen-level § 2L1.2(b) enhancement. judgment of the district court is therefore AFFIRMED. 2 The